Byrd v. Vanderburgh

• Decision Date: 12 November 1912
• Citation: 151 S.W. 184,168 Mo. App. 112
• Parties: BYRD v. VANDERBURGH.
• Court: Missouri Court of Appeals

151 S.W. 184

168 Mo. A. 112

BYRD v. VANDERBURGH.

St. Louis Court of Appeals. Missouri.

November 12, 1912.

1. APPEAL AND ERROR (§ 842) — GROUNDS FOR NEW TRIAL — SUFFICIENCY OF EVIDENCE.

A ground of a motion for a new trial that "the verdict and judgment are for the wrong party," and that they are contrary to the evidence, is, in substance, the same as a claim that they are contrary to the greater weight of the evidence, which is not a ground of appellate interference.

2. APPEAL AND ERROR (§ 1003) — FINDINGS — CONCLUSIVENESS.

That the verdict is contrary to the greater weight of the evidence is not a ground for disturbing a verdict by the appellate court.

3. NEW TRIAL (§ 128) — SUFFICIENCY OF MOTION.

A ground for a motion for new trial that the judgment and verdict are against the law is not sufficiently specific for consideration.

4. APPEAL AND ERROR (§ 1061) — HARMLESS ERROR — RULINGS ON EVIDENCE.

Error in sustaining a demurrer to appellant's evidence in an attachment suit involving the right to possession of hoops as to particular hoops loaded in a car, was not reversible, where judgment went for appellant as to such hoops.

5. APPEAL AND ERROR (§ 260) — OBJECTION TO EVIDENCE.

Error in admitting evidence cannot be reviewed if the ruling admitting it was not excepted to.

6. APPEAL AND ERROR (§ 1056) — HARMLESS ERROR — EXCLUSION OF EVIDENCE.

Error in excluding evidence relating to an item of property in controversy as to which judgment was rendered for appellant was harmless.

7. NEW TRIAL (§ 90) — GROUNDS — PERJURY OR MISTAKE — DISCRETION OF COURT.

Rev. St. 1909, § 2022, authorizing the granting of a new trial if the court is satisfied that perjury or mistake was committed by a witness, occasioning an improper verdict or finding as to such matter, if the moving party has a just cause of action or defense, gives the trial judge a wide discretion in granting a new trial on such ground, subject only to its reasonable exercise under the facts.

8. APPEAL AND ERROR (§ 994) — FINDINGS — CONCLUSIVENESS.

It is not the appellate court's province to interfere with findings by the court which depend upon the credibility of witnesses.

9. NEW TRIAL (§ 89) — GROUNDS — SURPRISE — ADMISSION OF EVIDENCE.

Where, in attachment proceedings involving the right to possession of hoops, the only issue was whether interpleader who purchased the hoops from the debtor had taken actual possession thereof, and interpleader introduced evidence that it had marked the hoops, it could not claim a new trial on the ground that it was surprised because plaintiff's witnesses testified that the hoops were not marked when levy was made, though that fact was not denied at the justice's trial.

10. NEW TRIAL (§ 97) — GROUNDS — SURPRISE.

If a party is surprised by any action at trial, such as the admission of evidence, he should immediately ask a reasonable postponement to enable him to produce counter evidence or move for nonsuit, in order to rely thereon for a new trial.

11. ATTACHMENT (§ 308) — ACTIONS — BURDEN OF PROOF.

In attachment proceedings involving the right to possession of hoops claimed by interpleader as purchaser from the debtor, the burden was on interpleader to show that it had taken actual possession upon purchasing as required by law.

Appeal from Circuit Court, St. Genevieve County; Peter Huck, Judge.

Action by J. M. Byrd against W. F. Vanderburgh, in which the Bank of Marston interpleaded. From a judgment for plaintiff, interpleader appeals. Affirmed.

The controversy here is between the plaintiff, Byrd, an attaching creditor of defendant Vanderburgh, and the Bank of Marston, interpleader in the attachment suit, and involves the right to the possession of a quantity of hoops piled in the hoop sheds of the Marston hoop mill at Marston, Mo. The issues made upon the bank's interplea were tried to the court, jury being waived, and were found in favor of the plaintiff, the attaching creditor, as to all the hoops except some, which, when attached, had been loaded into a railroad car for shipment. The bank, interpleader, has appealed to this court. It claimed the right to the possession of the hoops under and by virtue of an instrument in the form of a bill of sale to it which was executed by defendant Vanderburgh on February 11, 1909, to secure certain advancements made and to be made by the bank, and purporting to transfer to the bank all hoops then in said sheds and all that might thereafter be manufactured by said mill or piled in said sheds or thereabout. It is conceded that neither the said instrument nor a true copy thereof was recorded or filed in the recorder's office. Up to Saturday, May 15, 1909, all the hoops remained in the hoop sheds, where they had been placed and kept by Vanderburgh while concededly in his possession. Part of them had been manufactured before the "bill of sale" was executed and part thereafter. The bank does not appear to have had possession or control of the sheds. They were appurtenant to the hoop mill which defendant Vanderburgh operated. On Saturday, May 15, 1909, the bank caused part of the hoops to be loaded on a car for shipment to a buyer whom Vanderburgh had found, he says, for the bank. The buyer's order for the car of hoops was addressed to the bank. A bill of lading issued in the name of the buyer. This loading was done by one Nelson, Vanderburgh's foreman, who was, however, according to the bank's evidence, employed by the bank for such loading. The hoops not so loaded remained in the sheds. On Monday, May 17, 1909, the hoops in the sheds as well as those on the car were levied on under the writ of attachment. The sole question upon the trial was whether the bank had taken possession of the hoops in the manner required by statute, before the attachment was levied. The cashier of the bank testified on its behalf that several weeks before the attachment the bank caused the hoops to be marked "here and there all over the several piles, `Property of the Bank of Marston'"; that the words "Bank of Marston" were put on with a rubber stamp, and the words "Property of" written with a lead pencil just above them. Ankersheil, assistant cashier, testified that he marked the hoops for the bank; that, in addition to the rubber stamp and lead pencil marking, he had written on sheets of paper the words, "Property of the Bank of Marston," and attached one or more of such sheets on each pile of hoops in the shed. On the other hand, W. A. Nelson, who had charge of the loading of the car for the bank, and J....